Shutdown Affecting ESA Policy and Compliance; Private Projects Feeling the Pinch

The longest partial government shutdown in United States history is taking its toll on Endangered Species Act (ESA) policy initiatives championed by the Trump Administration, and is making ESA compliance and project completion significantly more difficult for a wide spectrum of industries. In July 2018, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service published proposed changes to ESA implementing regulations relating to species listings, de-listings, critical habitat designations, and consultations under section 7 of the ESA. The comment period on these proposed regulatory changes closed in September 2018, and more than 200,000 public comments were logged. Addressing the thousands of public comments on USFWS’s proposed revisions to ESA regulations is just one of many tasks that has stalled while USFWS and other Department of the Interior (DOI) personnel wait for an end to the partial government shutdown. As we previously reported, thousands more comments have been received by DOI agencies in connection with various ESA-related proposals, such as designation of critical habitat for the endangered candy darter, revisions to regulations governing how Freedom of Information Act requests are processed, and revisions to greater sage grouse management plans.

The shutdown’s impact on ESA permitting and regulation are not hypothetical—regulated entities are already seeing consultation and permitting requests grind to a halt. Because most USFWS personnel have been furloughed in accordance with the USFWS Contingency Plan, USFWS is not processing requests for formal or informal consultation under the ESA—a process critical for a wide variety of private projects, including transmission lines, pipelines, and highway and other infrastructure projects. Similarly, non-federal entities that applied to USFWS prior to the shutdown for incidental take permits, pursuant to section 10 of the ESA, have found that the process is frozen. For some project proponents, these kinds of delays have imposed significant costs. For others, the delay and inability to complete the ESA section 7 consultation process or to obtain an incidental take permit during the shutdown may result in abandoning projects altogether.

At present, there is no clear plan for how to address the growing backlog of projects that await ESA permit decisions or consultation once the shutdown ends.

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  • Partner

    Rebecca Barho focuses her practice on natural resource law, with particular emphasis on the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA), and various Texas ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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